Arbitration Summary and Award Log

ARBITRATION SUMMARY AND AWARD LOG OCB AWARD NUMBER: 0837

OCB GRIEVANCE NUMBER: 23-18-19920706-0835-01-04-T

GRIEVANT NAME: MIMS, NATHAN UNION: OCSEA DEPARTMENT: MENTAL HEALTH ARBITRATOR: GRAHAM, HARRY

MANAGEMENT ADVOCATE: THERNES, LINDA 2ND CHAIR: UNION ADVOCATE: ARBITRATION DATE: 12/7/1992 DECISION DATE: 12/7/1992 DECISION: DENIED CONTRACT SECTIONS:

HOLDING:

COST: SUBJECT: ARB SUMMARY #0837

TO: ALL ADVOCATES

FROM: KENNETH COUCH

AGENCY: MENTAL HEALTH UNION: OCSEA ARBITRATOR: GRAHAM, HARRY STATE ADVOCATE: THERNES, LINDA UNION ADVOCATE: BNA CODES: 118.301 Progressive Discipline 118.654 Sleeping On The Job 106.011 Racial Discrimination

AWARD: 0837

Grievance was denied.

Grievant, a Therapeutic Program Worker, was discharged for sleeping on duty.

The Union states that the events described by Management did not happen. Grievant went into the break room due to physical problems with his feet. When Grievant's supervisor walked into the break room, Grievant was not asleep. Racial animosity on behalf of the supervisor induced this situation. There is no recent discipline on Grievant's record. The State's case has a fatal flaw in that there is only one witness.

Management asserts that there are instances when more than one person must witness an employee sleeping on the job. However, this occurred on New Year's Day, and there was only one supervisor on duty; it was impossible to obtain two witnesses. Grievant's denials are not credible. He was in the break room, wrapped in blankets, with the door locked. The supervisor had no doubts that Grievant was asleep. Grievant has a lengthy discipline record; two of Grievant's prior disciplines have been for sleeping on the job. The disciplinary procedure was delayed.

Arbitrator Graham found that the disciplinary conference was rescheduled because Grievant could not make it to the first date. Employer could not conduct the meeting without Grievant or the Union would have cried foul. Now, because the discipinary procedure was delayed to accommodate Grievant, the Union cannot complain. The dispute is over a question of credibility. Inquiry in this situation begins by examining the burden of proof. Management has the burden of convincing the Arbitrator that the events occurred and that the discipline is appropriate for the offense. Grievant's work history provides a basis of support for the supervisor's testimony. Grievant's denial that he was sleeping is skeptically viewed; self- interest does not furnish a basis for crediting or discounting testimony, but it does figure into the decision. The racial claims are taken gravely, but the Union provided no evidence of existing enmity between Grievant and the supervisor. There must be some evidcence of racial hostility in order to support the claims.